Lewis v. Birdsey

• Citation: 19 Or. 164,26 P. 623
• Parties: LEWIS v. BIRDSEY et al.
• Decision Date: 01 May 1890
• Court: Oregon Supreme Court

26 P. 623

19 Or. 164

LEWIS v. BIRDSEY et al.

Supreme Court of Oregon

May 1, 1890

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

(Syllabus by the Court.)

In an action to recover the possession of personal property, the plaintiff ordinarily must show that he is the owner of the property, or is lawfully entitled to the possession of it by virtue of a special property therein. The ownership, however requisite to maintain such an action need not be absolute; a right to the possession and dominion over it for the time is all that is essential.

Hence where one person is in possession of personal property exercising dominion over it, and another takes and carries it away without his consent, the former may maintain an action against the latter to recover the possession of the property although in fact it belongs to a third person, unless the latter can justify his taking of the property by showing such a privity existing between him and the owner as would entitle him to represent the owner's interest in it.

A sheriff, in the execution of a writ of attachment, is not authorized to take personal property into his custody where it is in the possession of a third person. In such case he can only attach the property by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having the possession of the same.

Where a plaintiff owned a band of cattle, a part of which he agreed to trade to one G., in consideration that G. would convey to him a half interest in a certain lot of land in the town of C.P., and would also assign to him certain policies of insurance upon the buildings situated on the lot, and the plaintiff took the cattle to be traded to C.P., and left them there to remain a certain length of time, when he would return and consummate the trade; and the plaintiff returned at the expiration of the time, but, ascertaining that G. had not assigned to him the policies of insurance, as agreed took the cattle and sent them back to the pasture, where he was keeping the band from which he had taken them; and subsequently the sheriff, under a writ of attachment in an action wherein one C. was plaintiff and said G. was defendant, in attempting to attach the cattle so agreed to be traded as the property of G., seized and took into his custody, against the protest of the plaintiff, a number of cattle, which he selected from the band without knowing whether or not they were the cattle agreed to be traded: held, that the attempted levy was a nullity, and that the plaintiff had such an ownership in the cattle, even if he had made a bill of sale of them to G., and the latter had conveyed to him the interest in the said lot, but had failed to assign to him the policies of insurance, as would entitle him to maintain an action against the sheriff to recover the possession of the cattle seized.

P.P. Prim, R. Williams, and C.W. Kahler, for appellant.

H.K. Hanna and Francis Fitch, for respondents.

THAYER C.J.

The issues in this case involve the right of the appellant to the possession of the cattle mentioned in the complaint, as against the respondents. The latter claimed the right to the possession of the cattle under the attachment proceedings referred to in the answer to the complaint. The grounds of error relied upon by the appellant consist entirely of exceptions taken to instructions given by the court to the jury, and to the refusal of the court to give certain instructions as requested by the appellant's counsel. It appears from the bill of exceptions contained in the record that the appellant gave evidence at the trial of the action showing that he was the owner of 23 head of full-blooded Galloway cattle; that he was keeping them in a Mr Bybee's pasture, in said county of Jackson; that he had been keeping them there four or five weeks prior to the time of the alleged taking by the respondent Birdsey, mentioned in the complaint; that a short time before said taking he took out from the pasture 7 head of the 23 head of cattle, and drove them over to Central Point, and turned them over to William Gates and Mr. Fenton to take in; that he gave Mr. Fenton charge of the cattle, and told him to keep them until he came in Sunday morning; that this was on the 14th or 15th of September, 1889; that he took the 7 head of cattle over to Central Point to trade with Mrs. Gates for an undivided half interest she owned in lot 11, block 11, town of Central Point; that he was to give her the cattle for her half interest in the lot, and she was to assign to him her interest in the insurance policies on the buildings situated thereon; that the cattle were not delivered to Mrs. Gates, because he did not come back until Monday morning, and she had left the Sunday evening before, and had not assigned to him the insurance policies; that he then took charge of the cattle, and had them sent back to the pasture with the others, but, on the following Monday, Birdsey, as sheriff, took the 8 head of cattle in controversy, which were a part of the said 23 head, under the attachment in favor of Cooper and against William Gates. It also appears from the bill of exceptions that, when the said sheriff went to levy the attachment upon the cattle, the appellant notified him that they belonged to him, (appellant,) and forbade his taking them; and that, the sheriff not being able to identify the said 7 head taken over to Central Point, those which he intended to levy upon, he employed one Edward McDonald to go with him and pick them out; that they took out 8 head, including a suckling calf, but did not know whether they were the same animals which had been taken to Central Point and driven back. It further appears from the bill of exceptions that the respondent W.G. Cooper was called as a witness, who testified that he had had conversations with the appellant in regard to the cattle; that he asked him about the black cattle,--if he had not traded Gates some black cattle; that appella...